Anna D. Jannetti v. Daniel T. Nichol

• Decision Date: 12 May 2000
• Docket Number: 97-CA-239,00-LW-2302
• Parties: ANNA D. JANNETTI, PLAINTIFF-APPELLEE v. DANIEL T. NICHOL, DEFENDANT-APPELLANT CASE
• Court: Ohio Court of Appeals

ANNA D. JANNETTI, PLAINTIFF-APPELLEE v. DANIEL T. NICHOL, DEFENDANT-APPELLANT

No. 97-CA-239.

00-LW-2302 (7th)

Court of Appeals of Ohio, Seventh District Mahoning

May 12, 2000

Civil Appeal from Mahoning County Court of Common Pleas, Domestic Relations Division, Case No. 91-DR-239.

For Plaintiff-Appellee: No Brief Filed.

For Defendant-Appellant: Daniel T. Nichol, Pro Se, 15649 Akron-Canfield Road, Berlin Center, Ohio 44401.

Hon Cheryl L. Waite, Hon. Edward A. Cox, Hon. Gene Donofrio

OPINION

WAITE J.

This timely appeal arises from a Judgment Entry of the Mahoning County Court of Common Pleas which suspended Appellant's visitation rights with his three minor children. For the following reasons, we affirm the judgment of the trial court.

Appellant, Daniel T. Nichol, and Appellee, Anna D. Jannetti F.K.A. Anna D. Nichol, were married in Mahoning County on April 7, 1979. Three children were born of the marriage: Jason Daxx Nichol, born April 1, 1981; Deanna Danielle Nichol, born August 23, 1984; and Aaron Dominic Nichol, born April 28, 1986.

On June 13, 1991, the marriage was dissolved by decree of the Court of Common Pleas of Mahoning County, Domestic Relations Division. The original Decree named the Appellee as residential parent and granted the father visitation rights on weekends and for six weeks during the summer.

On September 12, 1995, Appellee filed a Motion to Suspend Companionship. Appellee had stopped visitation with Appellant as of July of 1995. On September 29, 1995, Appellant filed a Motion for Citation and Finding of Contempt against Appellee for failure to comply with court-ordered visitation. Over the next two years the trial court held numerous magistrate's hearings on both motions.

On June 19, 1997, the magistrate filed his recommendation in the matter. The magistrate recommended overruling Appellant's contempt motion against Appellee and also recommended that all visitation with Jason be suspended, but that Appellee's request to suspend Appellant's visitation be overruled with respect to Deanna and Aaron. The magistrate recommended, however, that Appellant not be allowed visitation until both parties attend counseling and further conditioned Appellant's future visitation rights on changes in Appellant's behavior concerning alcohol consumption, public displays of affection toward girlfriends and his means of punishing the children. A review hearing was set for August 13, 1997.

On July 3, 1997, Appellant filed objections to the June 19th Magistrate's Report. On August 25, 1997, the trial court filed a Journal Entry which was signed on August 22, 1997 allowing Appellant to have visitation with the children on August 24 and 31, 1997. On September 18, 1997, the trial court filed another Journal Entry allowing Appellant supervised visitation with Deanna and Aaron on subsequent Sundays until further order.

On October 29, 1997, the trial court filed a Judgment Entry which adopted in full the Magistrate's Report of June 19, 1997. On November 26, 1997 Appellant filed his notice of appeal. His first assignment of error alleges:

"THE TRAIL [SIC] COURT ERRED IN SUSPENDING DEFENDANT'S- APPELLANT'S COMPANIONSHIP WITH MINOR CHILDREN JASON, DEANNA, AND AARON NICHOL, AS IT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO THE LAW."

Appellant argues that the right of the noncustodial parent to visit with his children should be denied only under extraordinary circumstances. He asserts that visitation ordinarily will be denied only if the noncustodial parent is unfit or if visitation would cause harm to the children. Appellant contends that any reduction of visitation privileges should be no more than is necessary to serve the best interests of the child. He argues that the relationship between a noncustodial parent and a child should not be totally severed unless the child is old enough to independently decide to discontinue all visitation. According to Appellant, even where a child expresses an unwillingness to participate in visitation, the court must inquire into the reasons for that unwillingness in order to determine if the child is making a truly independent decision.

Appellant contends that the evidence presented in over two years of hearings did not support Appellee's burden to prove that he was either unfit or that continued visitation would cause harm to the children, and therefore, his visitation should not have been suspended either permanently or temporarily with any of the three children. Based on the record before us, we have determined that this assignment of error is without merit.

We begin by noting that a trial court has wide discretion in deciding visitation matters and thus, these are reviewed under an abuse of discretion standard. Booth v. Booth (1989), 44 Ohio St.3d 142, 144. To find an abuse of discretion, we must determine that the trial court's attitude was unreasonable, arbitrary or unconscionable. Id.

In Braatz v. Braatz (1999), 85 Ohio St.3d 40, the Ohio Supreme Court recently clarified what standards must be used when a court is modifying visitation rights. Modification of visitation is governed by R.C. §3109.051. Braatz v. Braatz, 4445. A trial court must consider the fifteen factors listed in R.C. §3109.051(D) and has the discretion to then determine that a change in visitation is in the best interests of the child. Braatz v. Braatz, 45.

R.C. §3109.051(D) states in relevant part:

"In determining whether to grant companionship or visitation rights to a parent * * * the court shall consider all of the following factors:

"(1) The prior interaction and interrelationships of the child with the child's parents, siblings, and other persons related by consanguinity or affinity * * *

"(2) The geographical location of the residence of each parent and the distance between those residences * * *

"(3) The child's and parents, available time, including, but not limited to, each parent's employment schedule, the child's school schedule, and the child's and the parents, holiday and vacation schedule;

"(4) The age of the child;

"(5) The child's adjustment to home, school, and community;

"(6) If the court has interviewed the child in chambers, pursuant to division (C) of this section, regarding the wishes and concerns of the child as to visitation by the parent who is not the residential parent * * * as to a specific visitation schedule, or as to other visitation matters, the wishes and concerns of the child, as expressed to the court;

"(7) The health and safety of the child;

"(8) The amount of time that will be available for the child to spend with siblings;

"(9) The mental and physical health of all parties;

"(10) Each parent's willingness to reschedule missed visitation and to facilitate the other parent's visitation rights * * *

"(11) In relation to visitation by a parent, whether either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child;

"* * *

"(13) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent's right to visitation in accordance with an order of the court;

"(14) whether either parent has established a residence or is planning to establish a residence outside this state;

"(15) Any other factor in the best interest of the child."

We note that in his recommendation, the magistrate expressly stated his findings with respect to each of the above factors. Therefore, there is no merit to an argument based on a failure to consider relevant statutory factors.

Appellant argues that a noncustodial parent's visitation rights may be suspended completely only if that parent is determined to be unfit or if there is a significant risk of serious physical or emotional harm to the child. This position understates the court's authority over visitation determinations. R.C. §3109.051(A) grants the trial court broad authority to restrict visitation. This includes the power to restrict the time and place of visitation, to determine the conditions under which visitation will take place and to deny visitation rights altogether if visitation would not be in the best interests of the child.

The court took over two years to make a final determination on Appellee's Motion to Suspend Visitation filed on September 12, 1995. The court heard extensive testimony from a variety of psychologists, all three children, the children's guardian ad litem, the parties themselves and from relatives of the parties. Much of the evidence centered around the emotional condition of the children, their wishes regarding visiting with Appellant and whether Appellant posed a danger to his children. The ages of the children were also a significant factor in this matter. When the court rendered its final judgment on October 29, 1997, Jason was 16, Deanna was 14 and Aaron was 11.

The trial court determined that Appellant's visitation rights with Jason should be suspended completely. The trial court made a separate determination as to Appellant's visitation rights with Deanna and Aaron. Appellant incorrectly characterizes the court's ruling concerning Deanna and Aaron as a complete suspension of visitation rights. The magistrate's decision adopted by the court order clearly states at page 22, "* * * that the [Appe...